Volume 239 — Illinois Reports

Appear from the Circuit Court of Vermilion county; the Hon. James W. Craig, Judge, presiding. This was a bill for specific performance of a contract for exchange of lands. Appellant, a banker living at Philo, in Champaign county, was the owner of a farm of 871 acres in Bond county, Illinois, which he had placed with Jason S. Williams to sell.

A. H. Ci-iEtlain, Judge, presiding. Appellee brought an action on the case against appellant in the superior court of Cook county in March, 1905, for personal injuries alleged to have been received November 8, 1904, while passing through an exit turnstile at the Fifth avenue terminal station of appellant’s railway in Chicago.

<p>Appeal from the Superior Court of Cook county; the Hon. Axel Chytraus, Judge, presiding.</p>

<p>x. Appeals and errors—decree is final only when it terminates the litigation. A judgment or decree is final and appealable only when it terminates the litigation between the parties on the merits of the case, so that when affirmed the court below has only to proceed with the execution of the judgment or decree; but a decree which retains the cause for future determination of matters substantially in controversy between the parties is not final and appealable.</p> <p>2. Same—when decree is not final. A decree which, after setting aside an appraisement under a lease, finds that the rental to be paid for the next period is not fixed by a certain provision of the lease but that the determination of the reasonable rental for such period b'e reserved for the further consideration of the court, is not final as respects the question of the amount of rent to be paid, and until that question is determined an appeal cannot be taken by the party at whose instance the appraisement was set aside.</p>

<p>Injunction—when bill to enjoin collection of drainage assessment cannot be maintained. A bill to enjoin the collection of a drainage assessment pending the determination of a quo warranto proceeding to determine the legality of the organization of the district cannot be maintained, even though the bill shows, and the demurrer admits, that the assessment is illegal, where the 'complainants have an adequate remedy at law so far as the legality of such assessment is concerned, and there are no allegations in the bill that the persons acting as commissioners threaten or intend to make other assessments.</p>

Julian W. Mack, Judge, presiding. On March 23, 1905, the People of the State of Illinois, suing by the Canal commissioners, brought an action of ejectment in the circuit court of Cook county against the Chicago and Northwestern Railway Company, appellee, to recover possession of lots 1, 2, 3 and 7 and the west twenty feet of lot 4, all in block 7 of the original town of Chicago, and also all that part of the said original town of Chicago which lies south of the south line of…

Charles M. Walker, Judge, presiding. This is a suit in chancery to contest the will of Daniel B. Shipman, deceased. Shipman died November 22, 1906, and his will was admitted to probate January 11, 1907.

Writ or Error to the Branch Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. R. W. CliRRord, Judge, presiding.

<p>Writ or Error to the Circuit Court of Iroquois county; the Hon. Frank L. Hooper, Judge, presiding.</p>

<p>Appeal from the Branch Appellate Court for the First District;—heard in that court on writ of error to the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding.</p>

Writ op Error to the Appellate Court for the First District;—heard in that court on writ of error to the Criminal Court of Coolc county; the Hon. M. W. Pinckney, Judge, presiding. On April 27, 1906, the plaintiffs in error, Abner Smith and Gustave F. Sorrow, together with Jerome V. Pierce and Frank F. Creelman, were jointly indicted by the grand jury of Cook county for conspiracy to obtain money and other property by false pretenses.

Appear from the Branch Appellate Court1 for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Flon. George A. Dupuy, Judge, presiding.

<p>1. Wills—section if of the Statute of Wills does not abrogate rule of revocation of will by implication. Section 17 of the Illinois Statute of Wills provides the method for expressly revoking a will, but it does not abrogate the common law rule that a will, or a part thereof, may be revoked, by implication, by acts of the testator inconsistent therewith.</p> <p>2. Same—a devise is revoked by conveyance of subject matter and is not revived when testator re-acquires title. A provision of a will devising land is revoked, by implication, by a conveyance of the land during the testator’s lifetime, 'and it is not revived when the testator subsequently re-acquires the title to such land, where the will is not re-published in the manner provided by the statute for the execution of wills.</p>

Appear from the Branch Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Lockwood Honoré, Judge, presiding. The appellee recovered a money decree against Richard Curran for $16,720.63.

E. R. E. Kimbrough, Judge, presiding. This is an appeal by the Cleveland, Cincinnati, Chicago and St. Louis Railway Company and the Cairo, Vincennes and Chicago Railway Company from a judgment of the Appellate Court for the Third District affirming a judgment recovered by Marion E. Winn, as administrator of the estate of James H. Shively, deceased, the appellee, in the circuit court of Edgar county, against appellants, in a suit for damages resulting to the next of kin from…

S. C. Stough, Judge, presiding. This suit was begun by appellees in the superior court of Cook county against appellant, a common carrier, to re-, cover damages alleged to have resulted from the appellant’s. failure to deliver eleven car-loads of potatoes loaded on its line in Iowa in April, 1890, destined to Philadelphia, and consigned to Pancoast & Griffith’s potato yard, Second and Masters streets, Philadelphia, Pa. The suit was commenced-in August, 1898.

Writ OR Error to the Criminal Court of Cook county; the Hon. William H. McSurlly, Judge, presiding. On January 9, 1908, David Anderson, John Dennin and Joseph Lemke were jointly indicted by the grand jury of Cook county for the murder of Michael D. Callaghan, a police officer of the city of Chicago.

<p>Easements—a permissive use cannot ripen into a prescriptive right. The occasional use of the private passageway of an adjoining land owner for the purpose of delivering coal or kindling to the user’s premises, either with the consent of such land owner ■ or without his knowledge but under no claim of right by the user, cannot ripen into an easement, by prescription, in the use of the passageway for such purpose.</p>

Axel Chytraus, Judge, presiding. This was a petition filed January 19, 1907, in the superior court of Cook county, by appellee, to condemn certain property, valued at over three million dollars, in the city of Chicago, for the purpose of building a new depot, and tracks by which to enter same. The jury fixed the value of the property of appellant the Chicago Mechanics’ Institute at $44,444.44, and that of appellant James J. McCarthy at $56,010.49.

Frank L,. Hooper, Judge, presiding. This is an appeal from a decree of the circuit court of Kankakee county dismissing for want of equity a bill for injunction and other relief, brought by appellant against the appellees.

<p>1. Constitutional law—extent of constitutional prohibition against special or local laws. Section 22 of article 4 of the constitution prohibits local or special laws in certain enumerated cases, but in all other classes of cases the question whether a general law can be made applicable or whether a special act shall be passed is for the legislature, and not for the courts.</p> <p>2. Same—prohibition of constitution does not apply to ordinances within city’s powers. The prohibition of the constitution respecting special legislation does not apply to ordinances adopted by a city within the powers conferred upon it by general law, and while an ordinance which deprives a party of a right guaranteed by the constitution is void, yet the mere fact that an ordinance is special and applies to a certain business does not necessarily render it invalid.</p> <p>3. Same—when an ordinance is not special. An ordinance requiring all persons engaged in the business of exhibiting moving pictures to obtain a permit, and providing that the chief of police shall not issue a permit for the exhibition of immoral or obscene pictures, is not special or discriminating because it makes no reference to the business of exhibiting stationary pictures by stereopticons or other similar device.</p> <p>4. Same—city has power to regulate the moving picture business. Clause 45 of section 1 of article 5 of the City and Village act expressly authorizes the passage of an ordinance to prohibit the exhibition of immoral or obscene pictures, and the fact that the ordinance applies only to moving pictures and does not prohibit the exhibition of stationary ones does not amount to a sanction of the exhibition of stationary pictures which are immoral or obscene, nor furnish ground for a claim of discrimination against the moving picture business.</p> <p>5- Same—an ordinance passed under express power cannot be held void for unreasonableness. Where an ordinance is passed in pursuance of an express power to pass an ordinance of a particular character, the courts cannot set aside such ordinance because they deem it unreasonable.</p> <p>6. Same—what does not render moving picture ordinance invalid. The fact that an ordinance which requires exhibiters of moving pictures to first exhibit them to the chief of police does not require that scenes enacted on the stage of theaters be first enacted before the chief of police does not render the ordinance invalid, even though some of the moving pictures are reproductions of the scenes enacted in'the theaters.</p> <p>7- Same—what is not a delegation of legislative power. While a legislative body cannot divest itself of its proper function of determining what the law shall be, yet it may authorize others to do things which it might properly, but cannot understandingly or advantageously, do.</p> <p>8. Same—ordinance not invalid because chief of police is to determine whether pictures are obscene or immoral. An ordinance prohibiting the exhibition of moving pictures which are obscene and immoral is not invalid because it leaves to the chief of police, in the first instance, the determination of the question whether such pictures are obscene and immoral.</p> <p>9- Same—ordinance prohibiting exhibition of "immoral or obscene” pictures fixes a sufficient standard. An ordinance prohibiting the exhibition of “immoral or obscene” pictures is not invalid because it fixes no other standard for the determination by the chief of police of the character of the pictures, where there is nothing in the ordinance to prevent resort to the courts to compel the chief of police to issue a permit to exhibit a picture which is not, in fact, obscene or immoral.</p> <p>10. Pictures—a picture may be immoral although it illustrates scenes connected with history. Moving pictures which portray crime are immoral even though they illustrate experiences connected with the history of the country, such as the career of the “James Boys” and the exploits of the “Night Riders.”</p> <p>11. Same—what is not depriving a person of property without due process of law. A city has power to pass an ordinance prohibiting the exhibition of moving pictures which are immoral and obscene, and if the ordinance applies to all persons engaged in the moving picture business, the fact-that such persons will be required to pay rent for the films during the time necessary for their inspection by the chief of police does not amount to depriving them of property without due process of law.</p>

<p>1. Quo warranto'—discretion of court must' be exercised according to law. While the right to file an information in the nature of quo warranto is not an absolute one and rests within the sound legal discretion of the court, yet such discretion must be exercised according to law, and its exercise is subject to review.</p> <p>2. Same—the court may act on petition without entering a rule nisi. The court may act on a petition for leave to file an information in the nature of quo warranto without entering a rule nisi, or it may enter such rule and in response thereto may hear affidavits and counter-affidavits.</p> <p>3. Same—when petition for leave to Me information is prima facie sufficient. A petition for leave to file an information in the nature of quo warranto is prima facie sufficient which charges that the meetings to organize the district, of which the respondents are assuming to act as commissioners, were held outside the territorial limits of the district, and that the respondents were chosen as commissioners under section 150 of the Farm Drainage act, which had been repealed.</p> <p>4. Same—the proper method of challenging legal existence of drainage district. The proper method of challenging the legal existence of a drainage district is to petition for leave to file an information in the nature of quo warranto against the individuals who are assuming to exercise the powers of the district.</p> <p>5. Same—petition for leave may challenge existence of district and title of respondents to office. While the information, which is the pleading, cannot, in the same count, challenge the existence of the district and the title of the respondents to the office of commissioners, yet it is not objectionable to join in the information separate counts respectively raising such questions, and the petition for leave to file the information may embrace both of such grounds.</p> <p>6. Same—the public are not barred by conduct of relators. The mere fact that private citizens appearing as relators are interested in an.information in the nature of quo warranto and have employed counsel to assist or conduct the hearing does not make the proceeding a private one, and if it is, in fact, a proceeding in which the public is interested, the rights of the public are not barred by any conduct of the relators which affects their individual rights by way of laches or acquiescence.</p> <p>7. Sam®—court may look into question whether public is interested. The court may look into the petition and the facts of the case and determine whether the proceeding is one in which the public has more than a theoretical interest, and if it appears the proceeding is purely in the interest of the relators the court has a wide discretion, and may refuse leave to file the information on account of acquiescence or unreasonable delay by the relators or conduct upon their part which ought to estop them.</p> <p>8. Sam®—when court should not refuse leave to Me information. The right of land owners to complain of the attempted exercise of corporate powers and the levy of drainage assessments is several and not joint, and the fact that the conduct of certain of the relators in a proceeding for leave to file an information in the nature of quo warranto may have been such as to justify the court in refusing the leave as to them does not justify such refusal as to other relators against whom no objection is shown.</p>

Edgar EldrEdge, Judge, presiding. This is an information in the nature of a quo warranto filed by Charles S. Cullen, the State’s attorney of LaSalle county, in the circuit court of said county, in the name of the People, upon the relation of Mary Shanley, John Kinnegar and William Anderson, against Daniel J. O’Connor, James J. O’Donnell and Fred Roux, as drainage commissioners of Union Drainage District No. i of the towns of Wallace and Waltham, in LaSalle county, to test…

<p>Appeal from the Circuit Court of DeWitt county; the Hon. Solon Piiilbrick, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Axel Chytraus, Judge, presiding.</p>

<p>Appear from the County Court of Cook county; the Hon. W. L. Pond, Judge, presiding.</p>

Appear from the Branch Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. J. W. Mack, Judge, presiding. Held: as above stated, ninety-five by appellee McCormick and five by Adsit.

<p>Appeal from the Appellate Court for the First District ;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.</p>

<p>1. Mandamus—statute in regard to mandamus does not apply to Supreme Court. The statute regarding mandamus has no application to the Supreme Court, and parties desiring leave to file a petition for mandamus in that court are required first to enter a motion for leave in open court, accompanying such motion with a copy of the petition, and supporting suggestions, if desired.</p> <p>2. Same—application for leave to file petition is ex parte. Up until the time an order has been made to allow the filing of a pex tition for mandamus the proceeding is purely ex parte, and the respondents named in the petition are not entitled to be heard until they are served by summons or until they voluntarily appear after the petition has been filed by leave.</p> <p>3. Same—filing a petition in vacation without leave is unauthorised. The filing óf a-petition for mandamus and the issuing by the clerk of a summons thereon without leave having first been obtained from the court in the regular way are without authority of ■law and have no force or effect whatever, even though the subject matter of the petition may be deemed of pressing importance and speedy action may be desired.</p>

<p>Writ of Error to the County Court of Bond county; the Hon. John H. Webb, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Crawford county; the Hon. E. E. NEwlin, Judge, presiding.</p>

Writ or Error to the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Carroll county; the Hon. R. S- Earrand, Judge, presiding.

<p>Appeal from the Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. A. H. Chetlain, Judge, presiding.</p>

Edgar EldredgE, Judge, presiding. This is a bill for injunction, filed in the circuit court of LaSalle county by appellee, a tax-payer of the township of Dimmiclc, in said county, to restrain appellant, as county clerk, from extending upon the tax collector’s books of said township certain taxes for the repair of roads.

<p>Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.</p>

R. M. Skinner, Judge, presiding. This is an appeal by the Chicago, Rock Island and Pacific Railway Company from a judgment of the Appellate Court for the Second District affirming a judgment for $3500 recovered by Frank Riedel, appellee, against it in the circuit court of LaSalle county, in an action on the case for personal injuries alleged to have been sustained by him through the negligence of the appellant, by its servants, in switching certain cars at the…

Writ or Error to the Appellate Court for the Fourth District;—heard in that court on appeal from the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding. This is an action on the case brought by defendant in error in the circuit court of Saline county to recover damages for injuries sustained by him while at work as a miner in plaintiff in error’s mine, August 13, 1906. The declaration originally consisted of four counts.

Appear from the Superior Court of Cook county; the Hon. W. M. McEwEN, Judge, presiding. Appellee filed a bill in the superior court of Cook county against appellant and others praying to have set aside and annulled two sheriff’s deeds to appellant, Weber, for two pieces of real estate alleged to be owned by appellee.

Appear from the Circuit Court of Winnebago county; the Hon. Robert W. Wright, Judge, presiding. Held: managed, controlled and invested or re-invested by my said trustees for the period of not to exceed ten (10) years from and after the probate of this will.

Writ of Error to the Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. George A. Dupuy, Judge, presiding.

<p>1. Robbery—the degree of force necessary to constitute robbery. The degree of force necessary to constitute robbery must be such that the power of the owner to retain his property is overcome, either by actual violence physically applied or putting him in such fear as to overcome his will.</p> <p>2. Same—the distinction between robbery and larceny from the person. If a thing of value be feloniously taken from the person of another with such force as to occasion a substantial corporal injury or if it be obtained by a violent struggle with the possessor the offense is robbery, but if it be taken without any sensible or material violence to the person and without any struggle for its possession the offense is larceny from the person:</p> <p>3. Same—what does not constitute an assault with intent to rob. An attempt to remove a stud from a person’s necktie by stealth and adroitness, after putting a newspaper under his chin when he was on the platform of a crowded car, does not constitute an assault with intent to rob, where the person making the attempt ran away as soon as his hand was released by the owner of the stud, and where there was no violence to the person of such owner nor any struggle either to obtain the stud or retain it.</p>

Appear from the Branch Appellate Court for the First - District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. A. H. ChETrain, Judge, presiding.

<p>1. Wills—circuit court has no original jurisdiction of the pro-, hating of wills. The circuit court has no original jurisdiction of the probating of wills, but the exclusive original jurisdiction is vested, both by the constitution and the statute, in the county court.</p> <p>2. Same—jurisdiction of circuit court of the probating of wills is appellate, only. The jurisdiction of the circuit court in the matter of probating wills is derived from the Statute of Wills and is appellate in character, and it is only when the county court has acted and has admitted or refused to admit a will to probate that the circuit court may obtain jurisdiction by appeal, and even then the trial is de novo and is confined to the order appealed from.</p> <p>3. Appeals and errors—when appeal lies to circuit court. An order of the county court setting aside an order admitting a will to probate is not a final order; but an order of such court refusing to set aside the probate of a will is final, and under the statute an "appeal may be taken to the circuit court.</p> <p>4. Same—order of circuit court setting aside probate of will on appeal is not final. An order of the circuit court setting aside, on appeal, an order of the county court sustaining the probate of a will and refusing to set it aside is not an adjudication upon the merits of the case and is not a final order from which an appeal will lie to the Supreme Court, but its effect is merely to open up the proceeding for another hearing in the county court upon the petition to admit the will to probate. (Wright v. Simpson, 200 Ill. 56, explained.)</p> <p>5. Same—the circuit court can proceed no further after setting aside order probating will. After the circuit court has set aside an order of the county court sustaining the probate of a will it can proceed no further, and upon the order of the circuit court being transmitted to the county court the matter of probate is left pending in the county court to be determined in the future.</p>

<p>Writ of Error to the County Court of Kankakee county; the Hon. A. W. Deselm, Judge, presiding.</p>

Frank L. Hooper, Judge, presiding. Appellee filed a petition in the circuit court of Iroquois county praying a peremptory writ of mandamus to compel the commissioners of Milk’s Grove Special Drainage District No. 1 to alter, repair and modify the drainage system of said district and to deepen and widen the main ditch; also to deepen and widen two lateral ditches that run across appellee’s land and empty into the main ditch at the south line of his land so as to furnish an…

Writ op Error to the Circuit Court of Mason county; the Hon. Harry HiGBpp, Judge, presiding. This is a writ of error to review a decree of the circuit court in a partition suit in which defendants in error were complainants. The lands consist of two eighty-acre tracts adjoining- each other which have been in cultivation many years, the one hundred and sixty acres forming a square; also a forty-acre tract of timber land lying some distance from the one hundred and sixty acres.

<p>Appeal from the Appellate Court for the First District ;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.</p>

<p>Appeal from the Circuit Court of St. Clair county; the Hon. Charles T. Moore, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding.</p>

AppEae from the Branch Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the H011. Homer Abbott, Judge, presiding.

<p>Appeal from the Branch Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Robert W. Wright, Judge, presiding.</p>

<p>1. Evidence-—what is not competent as tending to prove existence of rule. Where two street railway companies are sued for injuries received by the plaintiff in a collision between their cars, one defendant is entitled to prove, by any legitimate evidence, that there was a rule in existence giving its cars the right of way over cars of the other defendant; but an offer to prove there had once been such a rule is properly refused, where there is no proof, or offered proof, that it was in existence at the time- of the collision.-</p> <p>2. Same—error in rulings as between defendants does not concern plaintiff. In an action against two street railway companies for injuries received by the plaintiff in a collision between their respective cars the liability is not joint but several,' and if the evidence against the defendant found guilty is sufficient to sustain the judgment, errors in rulings of the court as between the defendants, with which errors the plaintiff had nothing to do, are not ground for reversal.</p> <p>3. Same—the fact that witnesses are doctors does not preclude their giving testimony as lay witnesses. The mere fact that witnesses for the plaintiff in a personal injury case are doctors does not disqualify them from testifying to matters which any lay witness might have observed and testified to, and their testimony that plaintiff limped when she walked and that the sole of the shoe on the foot she dragged was worn at the toe is not improper.</p> <p>4. Same—when testimony cannot be said to be based upon purely subjective manifestation. Testimony by a physician that pressure on a certain place in the plaintiff’s spine caused involuntary contraction of the muscles of the right side and hip, and that the pulse beat went from 80 to 120 on such pressure, cannot be rejected upon the ground that the manifestation was voluntary, even though the witness testified that anyone could simulate the motion of the foot and flinch voluntarily.</p> <p>5. Verdict—finding of jury is not a verdict until accepted and entered of record. Where the jury, in an action for personal injuries against two street railway companies, returns a verdict finding one defendant guilty but making no finding as to the other, the court may properly instruct them, in writing, to retire and complete their verdict by finding the other defendant guilty or not guilty, since the liability is not joint, and if the defendant found guilty thinks the jury may have changed their views since tire first finding it may poll the jury as to the verdict finally returned.</p>

AxEL Chytraus, Judge, presiding. This is an appeal from a judgment of the Appellate Court for the. First District affirming a judgment of the superior court of Cook county in favor of appellee, defendant below, against appellant, plaintiff below, for costs. Appellant employed one Henry W. Schleuter to erect a building.

AppEae from the Branch Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Theodore Brent ano, Judge, presiding. This is a suit over the fund represented by two certificates issued by the department of public works of the city of Chicago.

Writ op Error to the Branch Appellate Court for the First District ;■—heard in that court on writ of error to the Criminal Court of Cook county; the Hon. Farlin Q. Ball, Judge, presiding.

<p>1. Practice—when motion for a directed verdict must be made at close of all the evidence. If the defendant introduces evidence after her motion for a directed verdict, made at the close of the plaintiff’s evidence, has been denied, it is necessary for the motion to be again made and the peremptory instruction again offered at the close of all the evidence, otherwise the question whether the evidence fairly tends to support the plaintiff’s cause of action will not be preserved for review.</p> <p>2. Same—party must object to alleged incompetent testimony and except to ruling. A party who desires to preserve for review the question of the admissibility of evidence should object to its admission and save an exception to .the action of the court in admitting the testimony over his objection.</p> <p>3. Same—when motion in arrest of judgment is not proper. If a declaration has been held good upon demurrer its sufficiency can not be again tested by a motion in arrest of judgment, and there is no error in overruling such motion.</p> <p>4. Evidence—what evidence in corroboration of witness’ statement's is generally incompetent. Where a witness makes statements at the trial claimed to be different from those made out of court, proof that she made other statements out of court agreeing with those made on the trial is generally incompetent, as it usually amounts to hearsay.</p> <p>5. Same—zvhen it is not error to permit the attorney to testify. Where a witness intimates in her testimony that the plaintiff’s attorney had attempted to induce her to give false testimony, it is not error to permit the attorney, though actively engaged in the trial, to be sworn and give his version of the matter without withdrawing from the case; but such is not the approved practice.</p> <p>6. Appeals and errors—question of a variance cannot be first raised on appeal. The question of a variance between the declaration and the proof cannot be raised on appeal where it was not raised in any manner upon the trial.</p> <p>7. Same—abstract of record should set out all the instructions. Error cannot be predicated upon the giving, refusal or modification of instructions unless all the instructions are set out in the abstract of record', the reason for such rule being that there may have been other instructions which cured the error complained of.</p> <p>8. Same—the abstract of record should present all errors relied upon. The abstract of record should be so made up as to fully present for decision every error and exception relied upon, and, as against the party filing the abstract, it will be taken as correct and sufficient for a full understanding of the case.</p> <p>9. Same—errors relied upon must clearly appear from abstract of record. The presumption is that the judgment of a lower court is correct, and a party bringing a case to the Supreme Court should so present the case that the errors relied upon for reversal shall clearly appear upon the face of the abstract, as it is not the duty of the Supreme Court to search the record for reversible error.</p>

<p>1. Trial—when four jurors are accepted by both parties plaintiff must go ahead zvith next four. Under the statute the plaintiff should pass upon the jurors until four are accepted and tendered to the defendant, who must then pass upon the jurors until four are accepted and tendered back; and while the plaintiff is not required to tender a second panel of four to the defendant before the latter has tendered back the first four, yet when four are accepted by both sides the plaintiff must go ahead with the next four.</p> <p>2. Evidence—the fad that certificate to ordinance is not dated is not ground for excluding ordinance. Where the clerk’s certificate to an ordinance shows when the ordinance was passed and published, and is complete in every way except that it has no date, the want of a date is not ground for excluding the ordinance.</p> <p>3. Same—when bulletins stating time of arrival of trains are admissible. Bulletins showing the time of the arrival of freight trains at the station where plaintiff’s' intestate was killed are admissible in evidence without proof that the deceased knew their contents, where they show that a certain freight train carried passengers having mileage tickets, and where it is proven that deceased had such a ticket in his pocket and had gone to the station to become a passenger on such train.</p> <p>4. Railroads—giving signals does not exonerate company from charge of violating speed ordinance. The fact that signals of the approach of trains are given does not exonerate the railroad company from the charge of running its trains through the limits of an incorporated city, town or village at a rate of speed in excess of that permitted by ordinance.</p> <p>5. Negligence—instinct of self-preservation raises no general presumption in favor of due care. The instinct of self-preservation raises a presumption against an affirmative act tending to destroy life, such as suicide, and raises a presumption as to the conduct of a person where there is a known danger to be avoided, but it does not raise a general presumption in favor of the exercise of due care against unperceived dangers.</p> <p>6. Same—proof of due care where there are no eye-witnesses. Where there are no eye-witnesses to the killing of a person, his administrator, in an action for damages, may establish the exercise of ordinary care on the part of the deceased by the highest proof of which the case is capable, including the habits of the deceased and facts and circumstances from which the jury may rightfully find that he was exercising such care.</p> <p>7. Same—person cannot presume a fact against his own knowledge. While a person may presume that a railroad company will not violate the law unless he knows the contrary, yet he cannot presume a fact against his own knowledge, and if he knows that a regular train habitually runs through a town at a high rate of speed he cannot presume that it will not do so.</p>

<p>1. Wills—purpose of construing will is to ascertain intention of testator. The purpose of construing a will is to ascertain the intention of the testator, which intention must be found in the words of the will itself as applied to the subjects and objects of the testator’s bounty; and evidence of the state and condition of the testator’s property is admissible to identify such subjects and objects and to apply the language of the will to existing conditions.</p> <p>2. Same—when devise is not avoided by errors of description. However many errors there may be in a description, either of the devisee or the subject of the devise, the devise will not be avoided if enough remains, after rejecting the errors, to show with certainty what was intended when considered from the position of the testator; and it is to be presumed the testator intended to dispose of property which he owned.</p> <p>3. Same—when a devise will be sustained by rejecting false words. Where a testator devises “the south-east quarter of the north-east quarter and the north-east quarter of the north-west quarter” of a certain section, but it appears that the description of the first forty acres follows an error in -the testator’s deed, under which he took possession and claimed to own, for more than forty years, a forty-acre tract in the north-west quarter, supposing the description in his deed applied thereto, the words “quarter of the north-east quarter” may be rejected and the devise be given effect as to “the south-east and the north-east quarter of the north-west quarter” of the designated section.</p>

<p>1. Evidence—when an objection goes merely to weight of testimony. Where a witness in a street car collision case testifies as to the rate of speed the rear car was running, an objection to such testimony on the ground that he did not see the car until about an instant before the collision goes only to the credibility of his testimony and not to its competency, and is properly overruled.</p> <p>2. Same—making of statements inconsistent with testimony is not ground for excluding testimony. The fact that a witness has made former statements inconsistent with those made by him upon the trial affects the credibility of his testimony and not its competency, and is not ground for excluding such testimony.</p> <p>3. Same—when incompetent testimony of the physician will not reverse. The fact that the physician who attended the plaintiff from the time of her injury until the time of the trial, included, in the description of his tests, incompetent testimony as to pressure of the hands and the like, does not require a reversal of the case, where most of his testimony was based upon objective symptoms and the incompetent testimony was merely corroborative of the facts shown by the competent evidence.</p> <p>4. Same—expert may state that accident did produce plaintiff’s condition. Where the fact that the plaintiff received injuries in a street car collision is not denied and her attending physician has described such injuries and her subsequent physical condition, it is not improper for him to be allowed to give his opinion, as an expert, that her physical condition might have resulted, or did result, from the injuries received in the collision, since, in either event, the truth of the matter is for the jury to determine.</p>

Writ op Error to the Appellate Court for the Third District;—heard in that court on writ of error to the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.

<p>Appeal from the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of Champaign county; the Hon. Solon Philbrick, Judge, presiding.</p>

<p>1. Special assessments—the Park act of 1869 does not deprive city of power to improve streets adjoining park. Section 5 of the supplemental South Park act did not, ipso facto, divest the city of Chicago of power to improve, by special assessment, streets running longitudinally along and adjoining the proposed parks or parcels of land designated in the original act, and in order to divest the city of such power, jurisdiction for that purpose must have been assumed by the park commissioners.</p> <p>2. Same—what does not show that park commissioners have assumed jurisdiction over street. The fact that park commissioners prepared specifications for the improvement of the roadway of a street adjoining park territory, advertised for bids and inspected the work does not show that they assumed jurisdiction for the purpose of improving the street, where it appears the improvement was made with the .consent of the board of local improvements of the city and that the commissioners paid the expense of improving that half of the street adjoining their territory on the basis of an abutting owner.</p> <p>3. Evidence—when printed copies of reports are not admissible. Printed copies of certain reports of park commissioners are not admissible in evidence over an objection that they are not the best evidence and that a proper foundation for their admission has not been laid, where the secretary of the board testifies that he has charge of the records and does not know where the original reports are or whether they are in existence, but that he has not made any search for them.</p>

Appear from the Superior Court of Cook county; the Hon. Farrin Q. Barr, Judge, presiding. This is an appeal by Albert W. Winsor and others from a decree of the superior court of Cook county. The court overruled their demurrer to a bill for partition filed by Ira A. Smith and others, appellees, in that court. Appellants elected to stand by their demurrer, and the decree was entered against them pro confesso for want of answer.

Appear from the Circuit Court of White county; the Hon. P. A. Pearce, Judge, presiding. This is an appeal from a decree entered in the circuit court of White county setting aside a certain deed as a cloud upon the title to real estate. Appellee Ellen Ackman owned the said premises in fee simple in 1901, and occupied them with her husband, appellee James M. Ackman, as a homestead and continued to occupy them up to the time of the hearing in the circuit court.

<p>1. Deeds—presumption where a deed to two grantees does not specify interest of each. Where a deed is made to two or more grantees without designating the proportion each is to take, the law presumes they were intended to take equal shares, and they will be considered as tenants in common with equal interests until the contrary is shown.</p> <p>2. Trusts—burden of proving unexpressed trust is on party asserting it. A person who claims a third interest, in trust, in property conveyed by deed to two other persons, without specifying the interest each is to take or mentioning the alleged trust, has the burden of proving the existence of the alleged trust, and the evidence thereof must be clear and satisfactory.</p> <p>3. Masters in chancery-—a master’s findings of fact from oral testimony are entitled to due weight. While the report of a master in chancery does not have the same force as a verdict of a jury or the findings of the chancellor from oral testimony, yet where the master has seen the witnesses and observed their demeanor while testifying his findings of fact are entitled to due weight, particularly where no question as to the competency of the evidence is made and the findings are approved by the chancellor.</p> <p>4. Same—objections to master’s charges may be made on appeal—whit charge excessive. A charge of $200 for five and one-half days’ time by the master in chancery in studying pleadings, hearing arguments, studying transcript of testimony, etc., is excesT sive, where the testimony was not voluminous and the questions involved were not intricate or difficult; and the fact that no objection to the charge was made in the court below does not preclude the raising of the objection in a court of review.</p>

<p>1. Evidence—witness who states that signature is forged may state wherein it differs from genuine one. Where a non-expert witness testifies that the signature to a note is not genuine, from having seen the alleged maker of the note write, it is proper for him to state, without argument, the points of difference between the signature to the note and the genuine signature of the alleged maker, where there is no other signature or writing of the alleged maker in evidence with which to make comparison. ,</p> <p>2. Same—what does not show that witnesses were prejudiced. Where children of the deceased testify against the interests of the estate in a proceeding to establish a claim, it is proper to show, by cross-examination, that they are prejudiced against the executor or interested in favor of the -claimant; but mere proof that they are dissatisfied with their father’s will, without showing the reason for their dissatisfaction, does not go far enough to establish such prejudice or interest, and its admission is prejudicial, in affording the jury an improper basis for surmising that such witnesses were swayed by improper motives.</p> <p>3. Trial—when error in permitting the defendant to open and close argument will not reverse. Error in permitting the defendant executor to open and close the argument to the jury is not ground for reversal, where the case was tried and the instructions for both parties asked and given upon the erroneous theory that when the note in suit was admitted in evidence the burden upon the whole case rested upon the defendant executor to show that' the signature to the note, purporting to be that of his testator, was not genuine.</p>

<p>Appeal from the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.</p>

Appear from the Branch Appellate Court for the First District;—heard in that court on' appeal from the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding.

<p>1. Drainage—scope of objections to application for judgment of sale for drainage assessment. Upon application for judgment of sale for a delinquent drainage assessment, only such objections to the validity of the assessment can be urged as go to the jurisdiction of the court to enter the judgment of confirmation.</p> <p>■ 2. Same—former commissioner is estopped to question jurisdiction to confirm assessment. A land owner who petitions for the organization of a drainage district, is appointed and acts as one of the commissioners and participates in all the proceedings for the organization of the district, is estopped to afterwards question the jurisdiction of the court to confirm the assessment; and such estoppel extends to his grantee, if the latter had notice of the facts out of which the estoppel grows.</p> <p>3. Same—when the grantee must be held to have notice of facts estopping grantor. The county judge who presided during the proceedings for the organization of a drainage district and who appointed the commissioners and entered all the orders must, as the subsequent grantee of one of the commissioners, be held to have notice of the facts estopping his grantor to question the jurisdiction of the court to confirm the assessment; and such estoppel extends to the grantee’s executor, who is in privity with him.</p> <p>4. Names—when “H. N. Marks” and “Newell Marks” must be held to refer to the same person. The names “Newell Marks” and “H. N. Marks” must be held to refer to the same person upon the record of a drainage district showing Newell Marks to be the only person having the name of Marks who owned land in the district, and where, though the original signatures throughout the record are “H. N. Marks,” including one to an affidavit purporting to be made by “Newell H. Marks,” other parts of the record refer to such person as “Henry N. Marks” or “Newell Marks.”</p>

<p>Wirrs—when title vests in devisee subject to charges against the land. A devise of land to the son of the testatrix “on the condition that he pay” to other children of the testatrix certain sums of money within one year from the death of the testatrix vests the title in such son absolutely, subject to the payment of the amounts specified, and the fact that the money is not paid within one year does not vest the title in the other children or-their grantees.</p>

<p>1. Pleading—an objection to generality of statement should be raised by demurrer. An objection to the generality of an averment in a declaration should be raised by demurrer, as such defect' is one which is cured by verdict.</p> <p>. 2. Same—what defect in a declaration is cured by the verdict. Where a declaration in an action against a street railway company avers that the deceased was then and there rightfully driving his wagon over and along a certain street, the failure of the declaration to aver that the deceased was in the exercise of due care in driving upon defendant’s tracks in such street is cured by the verdict, there being no objection by demurrer.</p> <p>, 3. Same—plea of general issue docs not put in issue defendant’s ownership of cars and tracks. A plea of the general issue to a declaration in an action for personal injury against a street railway company does not put in issue the defendant’s ownership of the instrumentalities causing the injury, and an absence of proof that the defendant was in the possession and operation of the car which caused the injury is not fatal. (Chicago Union Traction Co. v. Jerka, 227 Ill. 95, adhered to.)</p> <p>4. Negligence—what is not contributory negligence per se. The fact that the driver of a wagon, in getting out of the way of a street car approaching from the rear, turned to the right upon the other track instead of turning to the left and thereby avoiding the danger of being struck by a car on such other track, is not negligence as a matter of law, particularly where there were circumstances making it impracticable to turn to the left.</p>

E. R. E. Kimbrough, Judge, presiding. This is an appeal from a judgment of the Appellate Court for the Third District affirming a judgment for $3000 rendered by the circuit court of Vermilion county in favor of appellee, and against appellant, for personal injuries sustained by appellee while working as a mule driver in the coal,mine of appellant. The declaration contained two counts.

<p>Appeals and Errors—when freehold is not involved in proceeding to sell land to pay debts. A freehold is not involved in a proceeding by an administrator to sell land to pay claims allowed against the estate,- where the title to the land is not controverted and the only effect of the decree is to subject the land to sale for payment of the claims, since payment thereof will relieve the land from all of the effects of the decree.</p>

Writ or Error to the Circuit Court of Lawrence county; the Hon. J. R. Creigi-iton, Judge, presiding. This suit was commenced by plaintiff in error by bill in chancery against defendants in error to enjoin them from drilling and operating a well for the production of oil and gas upon a one-half acre tract of land in the south-west corner of the west half of the south-east quarter of section 17, township 3, north, range 12, in Lawrence county, Illinois.

<p>1. Appeals and errors—section 118 of the new Practice act is a continuation of section 88 of old act. Section 1x8 of the Practice act of 1907, except for the inserted clauses relating to cases in which the validity of an ordinance is involved and those which the trial court certifies are of public interest, is the same as section 88 of" the old Practice act, and must be held to be a continuation of such provisions and not a new enactment.</p> <p>2. Same—section 118 of Practice act does not give a right of appeal. The right of appeal to the Appellate Court or Supreme Court is given by section 91 of the Practice act of 1907, and section 118 merely directs to what court appeals which may be allowed by law shall be taken, but it confers no right of appeal to any court.</p> <p>3. Same—a zvrit of error lies to revieza confirmation of levee drainage assessment. Notwithstanding the repeal of section 25 of the Levee act, authorizing appeals and writs of error to review the judgment confirming a levee drainage assessment, a writ of error to review such judgment will lie under section 123 of the Courts act. ■ (Hurd’s Stat. 1908, p. 655.)</p> <p>4. Same—order organising drainage district is not final. It is the order confirming a drainage assessment which is final and subject to review in a direct proceeding, and the order confirming the report of the commissioners and finding the district was duly established according to law is merely interlocutory. (C., C., C. & St. L. Ry. Co. v. Polecat Drainage District, 213 Ill. 83, and Smith v. Claussen Park Drainage District, 229 id. 155, explained.)</p>

Writ of Error to the Circuit Court of Jersey county; the El on. OwFn P. Thompson, Judge, presiding. On August 21, 1907, Ellen T. Dougherty, plaintiff in error, filed her bill in the circuit court of Jersey county against Charles Gaffney, John E. Gaffney, Dennis Gaffney, Jr., Matthew Gaffney and Hattie Ring, defendants in error, to contest the will of Dennis Gaffne}'-, Sr., deceased.